Resolution to Support and/or Co-Sponsor the Report and Recommendations of
the American Bar Association’s Standing Committee on Ethics and
Professional Responsibility
Regarding Model Rule of Professional Conduct 1.10


WHEREAS, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility (the “Committee”) has proposed amending Model Rule of Professional Conduct 1.10; and

WHEREAS, Model Rule of Professional Conduct 1.10(a) imputes the disqualification of one lawyer in a law firm to all other members of the firm, except when the disqualification is based on a personal interest of the lawyer that will not limit the ability of the other lawyers in the firm to represent the client; and

WHEREAS, the only exceptions to the broad application of imputation are in Model Rules 1.11 (addressing private firms that hire former government lawyers); 1.12 (addressing firms that hire a former judge, judicial law clerk, arbitrator, mediator or other “third-party neutral”); and 1.18 (discussing situations in which information has been imparted by a prospective client); and

WHEREAS, in situations covered under Model Rules 1.11, 1.12 and 1.18, the law firm may avoid imputed disqualifications by screening the disqualified lawyer from any involvement in the matter; and

WHEREAS, to date, proposals to amend the ABA Model Rules to allow screening when a lawyer moves from one private firm to another have been unsuccessful, most recently in 2002, when a proposal by the Commission on Evaluation of the Model Rules of Professional Conduct (“Ethics 2000”) was rejected by the House of Delegates by a margin of 176 to 130; and

WHEREAS, since the advent of the Model Rules many states have made different policy choices and there are now 21 states in which the movement of a personally disqualified lawyer to a new firm does not result in imputation of that lawyer’s disqualification to other lawyers in the new firm, if the lawyer is timely screened from participation in the matter; and

WHEREAS, Pennsylvania has had in effect for many years a version of Model Rule 1.10 that is substantially similar to that now proposed by the Committee; and

WHEREAS, the Pennsylvania experience of allowing screening when lawyers move from one firm to another has been a positive one which has balanced the competing reality of lawyer mobility and client confidences; and

WHEREAS, the Committee has recommended that the ABA adopt the following proposed resolution (the “Proposed ABA Resolution”), which will be presented to the ABA House of Delegates on August 11-12, 2008 at the ABA Annual Meeting in New York:

RESOLVED, that the American Bar Association adopts the following amendment to Model Rule of Professional Conduct 1.10: Imputation of Conflicts of Interest: General Rule

(e) notwithstanding paragraph (a), and in the absence of a waiver under paragraph (c), when a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under Rule 1.9 unless:

(1) the personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisions of this Rule.


Comment

[9] When the conditions of paragraph (e) are met, no imputation of a lawyer’s disqualification occurs, and consent to the new representation is therefore required. Lawyers should be aware, however, that courts may impose more stringent obligations in ruling upon motions to disqualify a lawyer from pending litigation.

[10] Requirements for screening procedures are stated in Rule 1.0(k). Paragraph (e)(1) does not prohibit the screened lawyer from receiving a salary of partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the mater in which the lawyer is disqualified.

[11] Notice, including a description of the screened lawyer’s prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

WHEREAS, the Philadelphia Bar Association has been invited to join other bar associations in supporting and/or co-sponsoring the Proposed ABA Resolution.

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association hereby approves and authorizes the participation of the Association as a supporter or co-sponsor of the Proposed ABA Resolution.

BE IT FURTHER RESOLVED that the Chancellor or his designee is authorized to take whatever steps are necessary to effectuate this resolution and to communicate the support and/or the co-sponsorship of the Proposed ABA Resolution to the drafters of the Proposed ABA Resolution, members of the ABA House of Delegates and to whomever else the Chancellor or his designee deems appropriate.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: June 26, 2008